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or “produced” (as in a performative one). This “undecidability” is due to the circular relationship of the text to its signer, namely “the people,” or the “we” of the Declaration. On the one hand, it seems, it is the signature of the people that authorizes the Declaration—in which case the Declaration would consist in a constative utterance by an already independent people stating its independence. On the other hand, however, “this people does not exist,” Derrida argues, “before this declaration, not as such”28—in which case it would be the Declaration itself that brings about independence by a performative utterance, thereby creating the people as an authoritative subject capable of underwriting the Declaration. Thus, at one and the same time, the Declaration both presupposes and constitutes its signer. The paradox of founding is at play.
Much of this may look like a case of old wine in new bottles.29 But there is actually more to Derrida’s argument than a simple restatement of the paradox of founding via linguistic analysis. Derrida attempts to reshape our understanding of the problem at a fundamental conceptual level by presenting the act of foundation itself as a speech act. If he is right in this claim, then it means that speech act theory is not simply applied to the problem of founding as though from without, and that the problems of speech act theory are also the problems of the politics of founding and vice versa. To get a better grasp of this point along with its wide-ranging implications, we need to get back to Austin’s theory of performative utterance and see Derrida’s critique of it.
According to Austin, the efficacy of a performative is ultimately a matter of convention. Take for instance the words “the class is dismissed.” They mark the end of the lecture and effectively dismiss the class only when they are uttered by the lecturer in the classroom. This is because there are certain conventions in place, some formal and some informal, that determine how lectures are to be conducted, thereby enabling the efficacy of the performative. “There must exist an accepted conventional procedure having a certain conventional effect”—this is Austin’s famous Rule A.1, the first rule of performative felicity.30 But now consider the same sentence, “the class is dismissed,” as being uttered by a student who thereby reports to another student what has just happened. Although the utterance is linguistically the same, not only do the student’s words lack the power to dismiss the class (a matter of convention), but their meaning is also different. This is because the context has changed. In terms of a distinction that Austin developed later in the text, the same “locution”—the same sentence taken as an isolated linguistic unit—would have quite different “illocutionary” meanings depending on the context.
The underlying idea is that in order to give an account of language as a way of doing things in the world one must consider the interaction between linguistic utterance and social practice, which in turn involves issues of context and conventionality. Derrida applauds Austin for this move. However, in Derrida’s view, something has also gone wrong in Austin’s project from the outset. While Austin acknowledges that no sentence can be self-identifying and that its meaning depends on the context, he proceeds with the assumption of a stable and static context that serves as the guarantor of meaning. Just as a free-standing sentence cannot identify its own meaning, Derrida objects, a context cannot be fully transparent either. “This is my starting point,” he announces: “no meaning can be determined out of context, but no context permits saturation.”31 Contexts are unsaturated, conventions are dynamic, and both are essentially exposed to indeterminacy. Austin comes to acknowledge this, but only in passing, when he admits that “it is difficult to say where conventions begin and end.”32
We may begin to see here the big picture regarding the profound affinity between the problems of speech act theory and the problems of the politics of founding. It is indeed difficult to say “where conventions begin and end,” and this is particularly so in revolutionary situations. When the American colonists declared independence in 1776, or when the delegates of the French Third Estate adopted the title “National Assembly” in 1789, they did not rest on “an accepted conventional procedure having a certain conventional effect” (Austin’s Rule A.1). Rather, it was the other way around. In both cases—and many others since then—the performative speech of the dissenters challenged existing conventions, while at the same time creating new ones. Revolutionary acts of foundation turn Austin’s Rule A.1 upside down. Instead of performatives depending on conventions, conventions are brought to depend on performatives.33
What follows from this reversal, according to Derrida, is that every act of foundation is by definition groundless and violent in a certain sense. In the “Force of Law,” he puts the point emphatically:
The very emergence of justice and law, the founding and justifying moment that institutes law implies a performative force…. Its very moment of foundation or institution (which in any case is never a moment inscribed in the homogeneous tissue of a history, since it is ripped apart with one decision), the operation that amounts to founding, inaugurating, justifying law (droit), making law, would consist of a coup de force…. Here the discourse comes up against its limit: in itself, in its performative power itself. It is what I here propose to call the mystical. Here a silence is walled up in the violent structure of the founding act.34
That every act of foundation is groundless and that law is anchored in a moment outside the law are not bad news for Derrida. Rather, they are suggestive of the fact that no institution can completely close on itself and fully colonize performative speech. The groundless beginning of the political community involves the seeds of its own destabilization and hence the very possibility of politics.35
In Derrida’s view the danger resides elsewhere: acts of foundation are prone to cover their own tracks. The retroactive production of authority, by way of an extraordinary performative creating the conditions of its own felicity, draws a mantle over the groundless beginning of the political community, thereby keeping out of sight the foundational deficit of legitimacy. One is tempted to recall Edmund Burke here. “There is a sacred veil to be drawn over the beginnings of all governments,” he suggested once, “time, in the origin of most governments, has thrown this mysterious veil over them; prudence and discretion make it necessary to throw something of the same drapery over more recent foundations.”36 The oscillation between constative and performative modes of speech, which structures the Declaration of Independence in Derrida’s reading, is a symptom of this hiding operation. Speaking as if “the people” are already present as a sovereign entity, the Declaration helps disguise the fact that independence is produced performatively and that “the people” arrives only after the fact.37
Rethinking Rousseau’s Paradox: William Connolly and Bonnie Honig
Among contemporary political theorists, William Connolly is arguably the most persistent and meticulous reader of Rousseau’s paradox of founding.38 He has repeatedly revisited this version of the paradox with a view to unpacking its implications for democratic theory, and offered a prolific interpretation that has been developed and fleshed out in various directions by others. On the one hand, Connolly celebrates Rousseau for identifying and articulating the paradox of founding; on the other hand, he observes that “Rousseau then conceals the legacy of this paradox in the operation of the general will after it has been founded by the creative intervention of a wise legislator.”39 Like Derrida, Connolly too thinks that there is a hiding operation going on. What sort of “legacy” is at stake here and how is it concealed?
According to Connolly, the paradox of founding is never truly resolved. Despite Rousseau’s artful efforts to imagine the lawgiver as a non-authoritarian authority who would not jeopardize the future autonomy of the people, what lurks behind the figure of the lawgiver is in the end an “element of arbitrariness that cannot be eliminated from political life.”40 This element of arbitrariness has both a conceptual and a historical side. Conceptually, the invocation of the lawgiver designates an unavoidable “impurity” inherent to the ideals of general will and popular sovereignty. There is no self-sufficient practice of political autonomy that is not inhabited by its own other, by some sort of heteronomous element that enables the exercise of popular sovereignty while remaining unaccountable in view of its normative aspirations. Hence, Connolly concludes that “the very structure